VA Disability and Spousal Maintenance
Depending on the length of your marriage and other factors you may have a spousal maintenance issue in your Woodlands divorce case. How does the law calculate a person’s income for awarding spousal maintenance?
In a Woodlands Divorce the judge is only allowed to consider certain items as the basis for an award of spousal maintenance. The statute defines gross income as:
- 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses); interest, dividends, and royalty income;
- self-employment income;
- net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
- all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes regardless of the source, gifts and prizes, maintenance, and alimony; and
What about VA disability payments?
In a recent case an appeals court had to consider if VA disability payments can be considered income as the basis for spousal maintenance. Let’s take a closer look at the case.
Husband and Wife were married in 1977. They were separated in 1997. The Husband retired from the military and was receiving VA Disability payments in lieu of military retirement. The Husband was also receiving combat related special compensation (CRSC) and social security. The Wife was living with their daughter at the time of the final hearing and was unemployed but was receiving Social Security.
The divorce decree awarded Wife $565 in spousal support. Husband appealed that amount of the spousal support awarded to Wife because it exceeded 20% of his average gross monthly income.
At the time of trial, Husband’s income consisted of $3,023.00 in VA disability, $1,450.00 in CRSC, and $1,261.50 in social security benefits. In addition to Mr. Franklin’s testimony, his divorce attorney offered two exhibits into evidence which demonstrated that the $3,023 was disability compensation from the Department of Veteran’s Affairs.
As the $3,023.00 he received was disability compensation, the appeals court determined, it was not properly included in Husband’s gross monthly income. Additionally, the social security benefits are likewise excluded. Frank’s gross monthly income was $1,450 per month with the exclusion of those two sources of income. Twenty percent of $1,450 is $290.00, which would be the maximum amount allowed by statute.
If Spousal Maintenance is an issue in your Woodlands Collaborative or Uncontested Divorce then make sure the number you reach is correct and has a rational basis in the law.
For additional information on getting divorced in The Woodlands and Montgomery County download my free guide to Divorce in The Woodlands; and remember to consider the unique benefits of a Collaborative Divorce if children are involved.